The Justices' Most Pressing Questions about the Defense of Marriage Act

• "I don't see why he doesn't have the courage of his convictions," Chief Justice John Roberts said this morning, referring to President Obama. This statement came early in today's oral arguments over the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as solely between one man and one woman. In fact, it came before the merits of the constitutional question were even discussed. It came during briefing and argument on the first of two procedural questions—whether the Obama Administration's enforce-but-not-defend policy regarding DOMA Section 3 left this case without the requisite features of an Article III case or controversy. Some of the justices, including Chief Justice Roberts, seemed particularly troubled by the Obama Administration's decision to enforce DOMA while refusing to defend the law's constitutionality in court. Here is a fuller version of Chief Justice Roberts' comment: "…[T]he Executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And if [the President] has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, 'Oh, we'll wait till the Supreme Court tells us we have no choice.'"

• Justice Breyer suggested, in response, that the president's policy might be based on a sound reading of the Take Care Clause, which says that the president shall take care that the laws be faithfully executed. In other words, according to Justice Breyer, the president's thinking may be that "because I have this obligation... I will continue to execute this law. I will continue to execute it though I disagree with it. And I execute it until I have an authoritative determination not to."

• Other Justices wondered whether this type of policy would undermine congress's assurance that its laws would be properly defended in court. Chief Justice Roberts asked, "What is the test for when you think your obligation to take care that the laws be faithfully executed means you'll follow your view about whether it's constitutional or not or you won't follow your view?" Justice Scalia took a similar tack when he asked, "So when Congress enacts a statute... it has no assurance that that statute will be defended in court, if the Solicitor General in his view thinks it's unconstitutional?" These justices were seemingly not persuaded by the similarities between this case and prior cases in which previous presidential administrations have also refused to defend laws they believed violated the Constitution. Chief Justice Roberts distinguished those prior cases on their facts, which for him meant that this case was "totally unprecedented. You're asking us to do something we have never done before to reach the issue" of whether DOMA is constitutional. When the government's lawyer responded that "it's unusual, but not at all surprising," Chief Justice Roberts reiterated, "No, it's not just—it's not just unusual, it's totally unprecedented."

• On the question of DOMA's constitutionality, Justice Kennedy quickly cited DOMA's massive impact on married same-sex couples. In an exchange with Paul Clement, the attorney representing the House Republicans who stepped in to defend DOMA's constitutionality when the Obama Administration refused, Justice Kennedy pointed out that Section 3 of DOMA "applies to over, what, 1,100 federal laws." Given the number of federal benefits predicated on marriage, it "means that the federal government is intertwined with the citizens' day-to-day life," putting the federal government "at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody." For Justice Kennedy, that seemed to mean that while DOMA may undermine equal protection principles by denying important benefits to couples with valid marriages, it may also suffer from the fact that it intrudes into the prerogative of the states to set the terms of their own marriage laws.

• Clement tried to argue that DOMA was motivated not by animus, but rather a mere desire for a uniform definition of marriage in the face of state experimentation, but Justice Kagan pushed Clement on his claim to an animus-free rationale. She noted that "for the most part and historically, the only uniformity that the federal government has pursued is that it's uniformly recognized the marriages that are recognized by the state. So, this was a real difference in the uniformity that the federal government was pursuing. And it suggests that maybe something—maybe Congress had something different in mind than uniformity. [W]e have a whole series of cases which suggest . . . that when Congress targets a group that is not everybody's favorite group in the world, that we look at those cases with some—even if they're not suspect—with some rigor to say, 'Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus, and so forth?' I guess the question that this statute raises, this statute that does something that's really never been done before, is whether that sends up a pretty good red flag that that's what was going on."

• Justice Ginsburg did not seem persuaded, either. DOMA "touch[es] every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little federal sphere and it's only a tax question. It's—it's—as Justice Kennedy said, 1100 statutes, and it affects every area of life." Once a state recognizes the freedom of gay and lesbian couples to marry, "for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave . . . one might well ask, what kind of marriage is this?"